username

password

Coram Chambersimage of 4 Paper Buildings logoDNA LegalGarden CourtHind CourtHarcourt Chambers1 Garden Courtsite by Zehuti

Home > Judgments

CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34

Application by local authority in the course of care proceedings in respect of three children that the father of one child, who did not have parental responsibility and thus was not entitled to automatic party status, should not be sent a copy of Form C6A notifying him of the proceedings.

Background
Mother was introduced to CD, the father of X, whilst he was in prison. CD was in prison when X was born, and he was sentenced to a further eighteen months imprisonment within a week of his release. At the time of the application CD was again in prison, having been sentenced to five years incarceration in 2015, and had not seen X for five years.

Mother and CD's relationship was coloured with domestic violence incidents perpetrated by CD, including incidents in 2010 (whereby the violence continued such that Mother moved to a different part of the country to get away from CD) and 2011. After the 2011 incident Mother was convinced that CD has been attempting to track her down. LA records indicated that in October 2011 CD was thought to be asking someone to impersonate Mother so that he could have access to her private information such as details of her GP and of the school X attended. Mother was concerned that if CD were made aware of the proceedings there would be a real risk that he would seek her out and that he would become threatening and violent towards her and her family.

Article 8 ECHR
The court first considered whether the relationship between CD and X could properly be described as amounting to 'family life'. Setting out the key authorities as to this issue (paras 23-28) the court summarised that when considering whether 'family life' exists, the following points emerge from the authorities: (para 29)

'(a) the determination of whether family life exists is essentially a question of fact;

(b) family life is not confined solely to marriage-based relationships; however,

(c) mere biological kinship is not of itself sufficient to constitute family life;

(d) cohabitation, though not a pre-requisite, is an important factor to be taken into account when considering the existence or otherwise of family life; however,

(e) other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto family life;

(f) there must be evidence of a close personal relationship, a demonstrable interest in and commitment to the child.'

It was submitted by the advocate to the court that the facts 'just reached' the Article 8 threshold. The LA disagreed. In determining this issue the court adopted a balance sheet approach (see paras 31-32), concluding that CD has been and continues to be a 'peripheral character' in X's life, where there exists no close personal relationship. CD's relationship with X was not therefore found not to have sufficient constancy and substance to suggest the existence of de facto family ties.

Article 6 ECHR
In considering Article 6 of the Convention, the court found, as in Re M (Notification of Step-parent Adoption) [2014] EWHC 1128 (Fam), that as CD did not have any Article 8 rights then Article 6 was not engaged. (paras 34-35)

Exceptional circumstances
Despite its conclusion in relation to CD's lack of Article 8 and 6 rights, the court nonetheless considered what the position would have been if it had concluded that the CD did have Article 8 rights and that Article 6 was, therefore, engaged. Upon reviewing the authorities Re AB (Care Proceedings: Service on Husband Ignorant of Child's Existence) [2003] EWCA Civ 1842 and Re M (Children) [2009] EWHC 3172 (Fam), the court noted that it was clear that where a parent is entitled to respect for his family life under Article 8 (and therefore also protection under Article 6) it will only be in very exceptional circumstances that the Article 6 right will be displaced by another person's Article 8 rights.

Although the court accepted Mother's evidence in relation to regular domestic violence perpetrated by CD, the court expressed doubt 'that the level of domestic violence and consequent risk crosses the hurdle of exceptionality justifying a decision to allow the Article 8 rights of the mother and X to override his Article 6 rights.' (para 41)

The requirement to serve Form C6A
The court confirmed that the right to receive a copy of Form C6A is not limited to those who are able to establish that they are entitled to the protection of Article 8, as the right to receive a copy of Form C6A exists for the benefit of every father whom a local authority 'believes to be a parent without parental responsibility for the child' irrespective of whether or not that parent has de facto family ties. The difference between a father who is able to establish de facto family ties and a father who is not able to do so is that the former is entitled to the protection of Article 8 and Article 6, whereas the latter is not. The court found that the practical consequence of that distinction is that the threshold for determining that it is not appropriate for such a father to receive Form C6A is lower for a parent who does not have the protection of Article 8 and Article 6 than it is for a parent who has that protection.

Although the threshold is lower for those without Article 8 and 6 rights, the decision not to serve with Form C6A still needs to be justified on the facts and not in an arbitrary manner. Risk and welfare will be important factors in considering whether to give permission to a local authority not to serve a birth father with Form C6A. The starting point must be twofold: (i) that it will normally be in the interests of the child that her birth father should receive a copy of Form C6A thereby enabling him to apply for party status so that he can participate in the proceedings, and (ii) that the child and her mother should not be put at risk of harm as a result of seeking to engage the father in the proceedings. It is a matter of balance and that is the case whether or not the father is entitled to the protection of Article 8 and Article 6. (para 46)

Conclusion
The court concluded that CD was not entitled to respect for family life pursuant to Article 8, and as a result was not entitled to the benefit of Article 6 rights. In light of those findings it was sufficient to justify a decision that CD should not be served with Form C6A. The LA's application was granted. The court, however, emphasised that the decision to permit a local authority not to give notice of care proceedings to a father who does not have parental responsibility is not necessarily a 'once and for all decision' and circumstances may arise during the course of the care proceedings that may require that issue to be revisited.

Summary by Emily Ward, barrister, Broadway House Chambers
________________________________________

IN THE FAMILY COURT
Neutral Citation No: [2017] EWFC 34

His Honour Judge Clifford Bellamy
(sitting as a Deputy High Court Judge)


Re CD (Notice of care proceedings to father without parental responsibility)
(judgment handed down on 24 May 2017)


Mark Saunders, counsel for the applicant local authority
Anthony Finch, counsel for the first respondent mother
Catherine Rodgers, solicitor for the father of Y and Z
Hannah Bramley, solicitor for the children
Claire van Overdijk – advocate to the court

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates and any other persons identified by name in the judgment itself may be identified by name and that in particular the anonymity of the children, the adult members of their family and their location must be strictly preserved.

JUDGE BELLAMY:

1. A local authority applies to the court for care orders in respect of three children, X, Y and Z. The children are all under 10 years of age. The mother of all three children is B. The father of X, the oldest child, is CD. The father of the younger two children is H.

2. H has parental responsibility for Y and Z. In accordance with the provisions of rule 12.3 of the Family Procedure Rules 2010 ('FPR 2010') he is, therefore, entitled to automatic party status in these proceedings. CD does not have parental responsibility for X. He is not, therefore, entitled to automatic party status. In accordance with paragraph 3.1 of FPR 2010 Practice Direction 12C he is, though, entitled to receive a copy of Form C6A (Notice to Non-Parties) which must be sent to 'every person whom the applicant believes to be a parent without parental responsibility for the child'.

3. In this case the local authority seeks an order that CD should not be sent a copy of Form C6A. That application is supported by all other parties. That is the application with which I am now concerned.

4. The court is grateful to the Attorney General for agreeing to provide an advocate to the court. Counsel appointed by the Attorney General, Miss Claire van Overdijk, has provided the court with a skeleton argument in which undertakes a rights based analysis of the issues before the court setting out a detailed and comprehensive outline of the relevant law and its application to the facts of this case. She has supported her skeleton with oral submissions. I am indebted to her for her considerable assistance.

Essential background
5. The mother was introduced to CD when she had just left school. He was then serving a prison sentence. Their relationship began after his release. At some point they began to live together. It is not clear when that was.

6. In 2007 the mother became pregnant. She was still cohabiting with CD. During her pregnancy CD and his parents appeared before the Crown Court. CD received a two-year custodial sentence for offences of dishonesty. His parents (X's paternal grandparents) were convicted of drug-related offences. Paternal grandfather was sentenced to a term of imprisonment. Paternal grandmother received a suspended prison sentence. CD was in prison when X was born.

7. CD's earliest release date would have been twelve months from the date of sentence. Within a week of his release he again appeared before the Crown Court. He was sentenced to an eighteen-month term of imprisonment. His actual release date is not known. The earliest date on which he could have been released was in July 2009.

8. The mother says that during her relationship with CD she was subjected to domestic violence. CD assaulted her on a regular basis (she says at least every other week). Sometimes he caused bruising. There have been times when he has threatened her 'with all kind of weapons including knives, axes and guns'. He was also controlling.

9. The mother and CD did not resume their cohabitation after his release from prison in the summer of 2009. However, the mother did allow him to visit her home to see X. He stayed overnight on occasions though it is not clear how frequently. X's paternal grandmother and step-sister (CD's daughter from a previous relationship) would also call round to see X from time to time.

10. The mother says that there was an incident in 2010 when CD was in drink and was violent towards her. He dragged her across the road by her neck. There is some corroboration for this incident in the material disclosed by the police. It is also clear from the police disclosure that they considered CD to be a risk to the mother. One note reads 'Any calls relating to [CD]…treat as urgent…[CD] is known to be violent.'

11. CD has a criminal record spanning more than twenty years. His record includes two convictions for offences of violence. Neither of those offences relates to acts of inter-partner violence.

12. In 2010 the mother and X moved to live in a different part of the country. She did so to get away from CD. CD found out where they were living. He visited them regularly. Again, the mother allowed him to stay overnight when he visited.

13. By November 2010 the mother had stopped CD from having contact with X. CD could have made an application to the court for contact. He has not done so. Since contact stopped CD has not taken any step with a view to reinstating it.

14. The mother describes an occasion in 2011 when CD tried to break into her home. She was very frightened. The next day she moved to live with a relative. She subsequently moved to live in a new area. It was at about this time that she began her relationship with H.

15. Although the mother has not seen CD since that last incident, she is convinced that he has been attempting to track her down. In her oral evidence the mother told the court that when she was last in contact with CD in 2010 he told her he had paid a private investigator to find her and that he would come to her home and throw acid in her face. After moving to the area where she now lives she received an approach from a third party informing her that CD had been looking for her and had offered money to find her. When she attended to sort out her benefits she was informed that someone had tried to impersonate her and had asked for details of her address.

16. In June 2016 the local authority undertook a parenting assessment of the mother and H. H told the assessor that he had received telephone calls from CD demanding money and threatening violence if the money was not paid. H did not comply with CD's demands. When he returned to his flat he found that it had been broken into.

17. In 2015 CD was sentenced to a six-year term of imprisonment for an offence of violence. He is still in prison. At the time he was sentenced it had been almost five years since he last had contact with X.

18. The local authority has known the mother since 2010. In her initial statement the allocated social worker says that on a date in 2010:

'75. …Children's services received a police referral reporting that CD was suspected of being violent towards [the mother] whilst pregnant, including dragging [her] into a property after assaulting her in the park. The police attended and [the mother] was heard to shout not to let the police in. A request to force entry in the property and to use a tazer (sic) was granted due to [CD] having links to firearms…'

19. There is a note in local authority records that in October 2011 CD was seen in the locality and was thought to be asking someone to impersonate the mother so that he could have access to her private information such as details of her GP and of the school X attended. The local authority made a referral to Women's Aid. The mother did not engage.

20. The mother is concerned that if CD were made aware of these proceedings there is a real risk that he would seek her out and that he would become threatening and violent towards her and her family. She continues to be fearful of him.

Family life
21. Article 8 of the European Convention on Human Rights and Fundamental Freedoms ('the Convention) is headed, 'Right to respect for family and private life'. It provides that:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

The first issue to be determined is whether the relationship between CD and X can properly be described as amounting to 'family life'.

Family life – the law

22. The determination of whether family life exists in any particular case has been the subject of significant jurisprudence both in this country and in the European Court of Human Rights.

23. In K v United Kingdom (1987) 50 D&R 199 (ECommHR) at p.207 the European Commission held that,

'The question of the existence or non-existence of "family life" is essentially a question of fact depending upon the real existence in practice of close personal ties.'

24. Keegan v Ireland (1994) 18 EHRR 342 concerned the decision by a mother to relinquish her baby for adoption without the knowledge or consent of the baby's father. The mother became pregnant shortly after she and the father married but the marriage broke down before the baby was born. The father contended that in placing the child for adoption without his knowledge or consent there had been a violation of his right to respect for family life in contravention of Article 8. In its judgment the court said that it,

'44. …recalls that the notion of the "family" in this provision is not confined solely to marriage-based relationships and may encompass other de facto "family" ties where the parties are living together outside of marriage. A child born out of such a relationship is ipso iure part of that "family" unit from the moment of his birth and by the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer cohabiting or if their relationship has then ended…

45. In the present case, the relationship between the applicant and the child's mother lasted for two years during one of which they co-habited.  Moreover, the conception of their child was the result of a deliberate decision and they had also planned to get married…Their relationship at this time had thus the hallmark of family life for the purposes of Article 8.  The fact that it subsequently broke down does not alter this conclusion any more than it would for a couple who were lawfully married and in a similar situation.  It follows that from the moment of the child's birth there existed between the applicant and his daughter a bond amounting to family life.'

25. Kroon v The Netherlands [1995] 2 FCR 28 concerned a child whose parents were not married but who were in a stable relationship. At all relevant times the mother was married to another man but living separately from him and had lost contact with him. The father wished to be acknowledged as such in the births register. The court made the point that,

'30. …Although, as a rule, living together may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto "family ties"; such is the case here, as since 1987 four children have been born to Mrs Kroon and Mr Zerrouk.'

26. Re H: Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR concerned two separate cases in each of which an unmarried mother had placed her baby with a local authority with a view to adoption. Each mother had done so on the basis that confidentiality would be respected and that she would not be pressed to disclose the identity of the father. Neither father had parental responsibility. In Re H the parents had had a relationship, including cohabitation, which had lasted for several years and the father had shown continuing commitment to the elder child. In Re G the parents had been in a relationship for 8 years but had never lived together. They became engaged and talked of having children in the future. They later separated. It appears to be the case that, unbeknown to the father, at the time they separated the mother was pregnant. In her judgment, Dame Elizabeth Butler-Sloss P made the point that,

'38. The first issue is whether there is a family life in respect of which there may be a breach. The European Court accepted in B v United Kingdom [2000] 1 FLR 1 that it is legitimate to treat married and unmarried fathers differently. Not every natural father has a right to respect for his family life with regard to every child of whom he may be the father (see also McMichael v United Kingdom (1995) 20 EHRR 205). The application of Art 8(1) will depend upon the facts of each case.'

The President found that in Re H the father had family life that was entitled to the protection of Article 8 but that in Re G the relationship did not have sufficient constancy to show de facto family ties.

27. Re M (Notification of Step-parent Adoption) [2014] EWHC 1128 (Fam) was another case in which the court had to consider whether a father should be notified of an adoption application in respect of his child. In this case, the father's address was unknown, he had not seen his son since just after his birth in 2005 save for one brief visit to the maternal family home in late 2007/early 2008. Theis J came to the following conclusions:

'45. …a critical starting point is to establish whether or not the father has any right to family life pursuant to Article 8. It is agreed this is a question of fact and there are a number of matters for the court to consider. It has been said that the threshold for establishing family life has been set at a fairly modest level.

46. The facts that would support a finding that he does have them are the mother and father cohabited in the period up to M's birth, for a very short period after he was born and the father is recorded as the father on the birth certificate.

47. Against such a finding is the evidence which demonstrates that the father has not sought to continue his relationship with M when he could have done so, as the maternal family in Thailand have not moved and he knows where they are. Apart from a brief visit in late 2007/early 2008 there has been no meaningful contact or any interest expressed by the father in M since March 2005. Mr Arnot submits he has, at the very least, acquiesced in a situation where there has been no de facto family life since, at the latest, very shortly after M's birth over 8 years ago.

48. Having considered the evidence in this case I am satisfied, on the particular facts of this case, that there was nothing to show the father had a right to respect for his family life with M pursuant to Article 8. He has not taken any meaningful steps in the last 8 years to retain contact with M, when he could have done so. The mother and father were only together for barely a week and a day after M's birth in what were clearly difficult circumstances and whilst his name was on the birth certificate it is more likely than not for the reasons described by the mother, not because that was what the father wished. In those circumstances, in my judgment, Article 6 is not engaged.'

28. In Singh v Entry Clearance Officer New Delhi [2005] 1 FLR 308, the Court of Appeal had to consider whether 'family life', within the meaning of Article 8(1), had been established between the appellant, a 6 year old Indian boy, and his adoptive parents who were settled in the UK. Munby J (as he then was) considered what constitutes 'family life':

'73. The Strasbourg case law recognises that in some instances family life arises ipso jure. That is so in the case of a lawful and genuine marriage, both in respect of the relationship between husband and wife and also…the relationship between the parents and their children. The same principle applies in relation to the children of de facto unions. As the Court said in Lebbink v The Netherlands (unreported - 1 June 2004) at para [35]:

"The Court recalls that the notion of "family life" under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto "family" ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that "family" unit from the moment and by the very fact of its birth. Thus there exists between the child and the parents a relationship amounting to family life."

74. Where there is no family life ipso jure then one has to look to all the circumstances. In many cases cohabitation will be a relevant consideration and in certain contexts it may be more or less important. But it can never be determinative. As the Commission said in Boyle v United Kingdom at para 15(43):

"cohabitation is ... not a prerequisite for the maintenance of family ties which are to fall within the scope of the concept of "family life". Cohabitation is a factor amongst many others, albeit often an important one, to be taken into account when considering the existence or otherwise of family ties."

75. Take the question of whether there is family life as between the partners in a de facto relationship outside marriage. As the Court observed in Lebbink v The Netherlands at para [36]:

"Although, as a rule, cohabitation may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto "family ties"." …

77. Family life arises ipso jure as between father and child where the child was conceived either in wedlock (Berrehab v The Netherlands at para [21]) or during the course of a stable relationship between unmarried parents (Keegan v Ireland at para [44], Kroon v The Netherlands at para [30], Lebbink v The Netherlands at para [35]). However, sometimes the relationship between the child's unmarried parents will be so exiguous that there will be no ipso jure family life as between the natural father and his child. But family life may nonetheless be shown to exist. As the Court said in Nylund v Finland (unreported - 29 June 1999) at p 14:

"the Court considers that Article 8 cannot be interpreted as only protecting "family life" which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock. Relevant factors in this regard include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth."

The Court made the same point in Lebbink v The Netherlands at para [36]:

"The existence or non-existence of "family life" for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties. Where it concerns a potential relationship which could develop between a child born out of wedlock and its natural father, relevant factors include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the father to the child both before and after its birth." …

79. I agree with Lord Justice Dyson that what he calls the core principle is to be found in Lebbink v The Netherlands at para [36]:

"The existence or non-existence of "family life" for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties."

Typically the question will be, as the Court put it in the same case at para [37], whether there is "a close personal relationship", a relationship which "has sufficient constancy and substance to create de facto "family ties"."

80. In the case of the parent/child relationship a central issue will often be what the Court both in Nylund v Finland and again in Lebbink v The Netherlands referred to as the parent's "demonstrable interest in and commitment to the child".'

29. In summary, when considering whether 'family life' exists, the following points emerge from the authorities:

(a) the determination of whether family life exists is essentially a question of fact;

(b) family life is not confined solely to marriage-based relationships; however,

(c) mere biological kinship is not of itself sufficient to constitute family life;

(d) cohabitation, though not a pre-requisite, is an important factor to be taken into account when considering the existence or otherwise of family life; however,

(e) other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto family life;

(f) there must be evidence of a close personal relationship, a demonstrable interest in and commitment to the child.

Is there family life between CD and X?
30. Miss van Overdijk submits that the facts of this case 'just reaches' the Article 8 threshold. For the local authority, Mr Saunders submits that the Article 8 threshold is not reached. In determining that issue it is appropriate to adopt a balance sheet approach.

31. The following factors would tend to support the proposition that the ties of family life exists between CD and X:

(a) the mother cohabited with CD for a significant period of time prior to the birth of X;

(b) following CD's release from prison in or around July 2009 he visited the mother's home regularly, sometimes staying overnight;

(c) when the mother moved with X to a new area CD took steps to find them and having done so continued to visit and to stay overnight;

(d) during the period of time when CD was visiting the mother's home, X's paternal grandmother and step-sister also visited and spent time with him.

32. Against that, the following factors suggest that the ties of family life between CD and X do not exist:

(a) the father does not have parental responsibility for X and has not taken any steps to obtain parental responsibility;

(b) in his birth certificate X is registered with the mother's maiden name and continues to be known by that name;

(c) during the first 15 months of X's life he was unable to form an attachment to his father because he was in prison;

(d) CD did not cohabit with the mother at any time after X was born;

(e) CD has not had contact with X since, at the latest, November 2010 and as a result X has not seen his father for more than 6 years;

(f) CD has not made an application to the court for a child arrangements order or taken any other steps to reinstate contact between himself and X.

33. When those arguments are weighed against each other, where does the balance fall? X is now aged 9. His father has been and continues to be a peripheral character in his life. There is no close personal relationship between them and in reality there never has been. In my judgment CD's relationship with X does not have sufficient constancy and substance to suggest the existence of de facto family ties.

The right to a fair trial

34. Article 6 of the Convention is headed 'Right to a fair trial' and states, so far as is relevant, that:

'(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …'

35. I noted earlier that in Re M (Notification of Step-parent Adoption) [2014] EWHC 1128 (Fam) Theis J held that if a father does not have any Article 8 rights then Article 6 is not engaged. In this case I have come to the conclusion that CD does not have any Article 8 rights. It follows, therefore, that Article 6 is not engaged. I propose, nonetheless, to consider what the position would have been if I had concluded that the father does have Article 8 rights and that Article 6 is, therefore, engaged.

36. I referred earlier to the decision in Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 which concerned the question of the circumstances in which it may be appropriate not to give a birth father notice of proposed adoption proceedings. Dame Elizabeth Butler-Sloss P said,

'(43) …If the father is a father who is found to have a family life with his child then one would expect Art 6(1) prima facie to apply. This raises the difficult question of the impact of the rights of other parties under Art 8, and the welfare principles, on the right to a fair trial.  There must, however, in principle, be some qualification of the right of a party to be heard in proceedings. This would be likely to arise under two separate categories, namely, a policy decision of the court, in the exercise of its right to run its own proceedings within the requirements that there should be a fair trial, and, secondly, the practicalities of service on a potential litigant or his attendance at the hearing. There will be cases where notice to a father would create a significant physical risk to the mother, to children in the family, or to other people concerned in the case (see for instance Re X (Care: Notice of Proceedings) [1996] 1 FLR 186). That might result in the court balancing the fairness to the father of notice, against the real risks of the consequences of such notice…

(48) …the desire of the mother for confidentiality and therefore non-disclosure to the father of the proposed adoption proceedings cannot prevail over notice to the father unless there are strong countervailing factors. Among such countervailing factors might be for instance rape, or other serious domestic violence that placed the mother at serious physical risk. There may well be other situations in which a father should not be informed of the proceedings and my examples are, of course, not exhaustive.'

37. The exceptionality of a decision not to give to a father notice of care proceedings or adoption proceedings was underlined by Thorpe LJ in Re AB (Care Proceedings: Service on Husband Ignorant of Child's Existence) [2003] EWCA Civ 1842. He observed that it

'3. …is clear that the court has a general discretion to grant exception from the requirements of the rules but that power is on the authorities only to be exercised in highly exceptional circumstances'.

38. In Re M (Children) [2009] EWHC 3172 (Fam) Hedley J had to consider whether to discharge as a party to care proceedings a father with parental responsibility who was, therefore, an automatic party to those proceedings. The father was serving a prison sentence for offences unrelated to the care proceedings. Whilst in prison the father had written letters which Hedley J said made 'chilling reading'. He went on to say that the letters,

'12. …portray a man who rejoices in evil, is indifferent to consequence and is determined to visit his proclivity for evil upon the mother (and therefore necessarily the children) and through his family and contacts believes that he has the present means to do so. As I have indicated this threat is regarded as real and credible by the police.'

39. After reviewing the relevant authorities, Hedley J came to some very clear conclusions:

'26. The starting points are two fold: first, that the father should be entitled to participate in this case; and secondly that the children and mother should not be put at risk of serious harm by the conduct of the proceedings. In considering the first the court should start with full participation then consider partial participation effected in this case by disclosure of redacted documents and then, only as a device of last resort, his exclusion from the proceedings. In considering the second the court must be alert both to risk and to the magnitude of consequences should the risk eventuate and must also consider whether and to what extent that risk can be managed by the courts' control of its own processes.

27. As to the question of risk and consequences, I have already set out my view. In my judgment the father, although incarcerated, represents a real and substantial risk to the children and their mother. I am also satisfied that through his contacts outside prison he will pursue the mother and, if he finds her, seek vengeance upon her; nor will he scruple to ensure that the children are not affected. I have concluded that only his exclusion from the proceedings will realistically achieve that end; although extensive redaction of documents is possible, there are so many documents which would have to pass through so many hands that the risk of accidental disclosure of a crucial piece of information would be very high.

28. On the other hand to do that would be to take the unprecedented step of excluding a father with parental responsibility, whose whereabouts are not unknown, from any knowledge of, let alone participation in, care proceedings involving his children.  Clearly the countervailing features must be overwhelming to justify such a course…

30. In all the circumstances of this case I have concluded that I should discharge the father as a party to these proceedings. When the actual unfairness of that to him in this case is weighed against the risk of disclosure leading the father to the whereabouts of the mother and children and the consequence of any such discovery, I have no doubt as to where the balance lies at the moment…'

40. It is clear from these authorities that where a parent is entitled to respect for his family life under Article 8 and, therefore, also to the right to a fair trial under Article 6, it will only be in very exceptional circumstances that the Article 6 right will be displaced by another person's Article 8 rights.

41. In this case, the mother says she was the victim of domestic violence on a regular basis (she says at least once every two weeks) and that she sustained bruising. I have accepted her evidence on that issue. The most recent incident was in 2011 when CD attempted to break in to her home. Since then the mother has been fearful that CD would try to find her and believes that he has tried to do so.

42. The decision not to notify a father without parental responsibility that his child is the subject of care proceedings has to be justified by an assessment of risk. In this case, even if CD's Article 6 rights were engaged (and for the reasons I have already given I am satisfied that they are not) then for my part, I am doubtful that the level of domestic violence and consequent risk crosses the hurdle of exceptionality justifying a decision to allow the Article 8 rights of the mother and X to override his Article 6 rights.

The requirement to serve Form C6A

43. FPR 2010 PD12C paragraph 3.1 provides that, so far as concerns an application for a care or supervision order under s.31 of the Children Act 1989, 'every person whom the applicant believes to be a parent without parental responsibility for the child' is 'entitled to receive a copy of Form C6A (Notice of Proceedings/Hearings/Directions Appointment to Non-Parties'.

44. The right to receive a copy of Form C6A is not limited to those who are able to establish that they are entitled to the protection of Article 8. The right to receive a copy of Form C6A exists for the benefit of every father whom a local authority 'believes to be a parent without parental responsibility for the child' irrespective of whether or not that parent has de facto family ties. The difference between a father who is able to establish de facto family ties and a father who is not able to do so is that the former is entitled to the protection of Article 8 and Article 6 whereas the latter is not. The practical consequence of that distinction, in my judgment, is that the threshold for determining that it is not appropriate for such a father to receive Form C6A is lower for a parent who does not have the protection of Article 8 and Article 6 than it is for a parent who has that protection.

45. Although the threshold for determining that a parent should not be served with a copy of Form C6A is lower for those parents who do not have Article 8 and Article 6 rights than it is for those who do, the decision that such a parent should not be served with Form C6A still needs to be justified on the facts and not in an arbitrary manner. Risk and welfare will be important factors in considering whether to give permission to a local authority not to serve a birth father with Form C6A.

46. Each year local authorities issue care proceedings in the Family Court in which the fathers of the children concerned do not have parental responsibility and who, though not parties, are nonetheless entitled to receive a copy of Form C6A. Until they receive Form C6A some fathers are in a state of ignorance about the existence of their child. Others are aware of the existence of the child and of the fact that they are the child's biological father but have thus far shown no interest in the child's life. For the children involved it is important that attempts are made to engage with their birth father and perhaps also his wider family. The starting point must be two fold. First, that it will normally be in the interests of the child that her birth father should receive a copy of Form C6A thereby enabling him to apply for party status so that he can participate in the proceedings. Second, that the child and her mother should not be put at risk of harm as a result of seeking to engage the father in the proceedings. It is a matter of balance and that is the case whether or not the father is entitled to the protection of Article 8 and Article 6.

Conclusion
47. I am satisfied that the relationship between CD and X lacks the elements necessary to support a finding that de facto family ties had been created such as to entitle him to respect for family life pursuant to Article 8. As a result, CD is not entitled to the benefit of the rights guaranteed by Article 6. In order to succeed on its present application the local authority does not, therefore, need to establish the high level of exceptionality that would otherwise be the case. 

48. I have accepted the mother's evidence of domestic violence. I have accepted that she lives in fear of CD finding her and making threats to her. I have noted that CD has a long criminal record and is currently serving a six year prison sentence for an offence of violence. I have expressed doubt about whether those facts would have been sufficient to justify an order that CD should not receive a copy of Form C6A had he been entitled to the protection of Article 8. In light of my finding that CD does not have Article 8 rights with respect to X, are those facts sufficient to justify a decision that CD should not be served with Form C6A? In my judgment they are. I am satisfied that, if CD became aware of these proceedings, that would give rise to a degree of risk to the mother and her family, albeit that I assess that risk and its consequences as being no more than moderate.

49. As the authorities make clear, the decision to permit a local authority not to give notice of care proceedings to a father who does not have parental responsibility is not necessarily a once and for all decision. Circumstances may arise during the course of the care proceedings that may require that issue to be revisited. For example, such a father may by chance become aware of the existence of the care proceedings and may apply for party status or, in ignorance of the existence of the care proceedings, may apply to the court for a child arrangements order.

50. The need to reconsider such a decision may also arise if, during the course of care proceedings, the local authority should come to the conclusion that the mother should be ruled out as a long-term carer for her child and assessment of maternal family members is negative. In that situation the local authority may wish to contend that nothing but adoption will do for that child. Before accepting that to be the case the court would have to consider whether the birth father should be given notice of the proceedings in order to facilitate consideration of the possibility that a paternal family member may be a suitable long-term carer for the child. The court may consider that that avenue must be explored before it could properly conclude that nothing but adoption would do for that child.

51. In this case those are potential issues for the future. For the moment, I am satisfied that it is not appropriate for CD to be given notice of these care proceedings. He should not be served with Form C6A. The local authority's application is therefore granted.